City of Beaumont v. Spivey

• Decision Date: 07 October 1999
• Citation: 1 S.W.3d 385
• Parties: (Tex.App.-Beaumont 1999) THE CITY OF BEAUMONT, TEXAS, Appellant v. MARK SPIVEY, Appellee NO. 09-97-376 CV
• Court: Texas Court of Appeals

Page 385

1 S.W.3d 385 (Tex.App.-Beaumont 1999)

THE CITY OF BEAUMONT, TEXAS, Appellant v. MARK SPIVEY, Appellee

NO. 09-97-376 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted on April 22, 1999

Decided October 7, 1999

On Appeal from the 58th District Court Jefferson County, Texas, Trial Cause No. A-152,221

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess and Stover, JJ.

OPINION

STOVER, Justice

Seeking reinstatement as a police officer with the City of Beaumont, Texas, ("City"), Mark Spivey ("Spivey") filed an action for mandamus in district court. After a non-jury trial, the district court granted final judgment in favor of Spivey, ordered the City to reinstate Spivey as a city police officer with full seniority, back pay, and benefits, and awarded Spivey attorney's fees. The City appeals the trial court's ruling.

After taking an entry level examination in May 1991 and scoring the second highest grade on the exam, Mark Spivey was hired on August 15, 1991, as a police officer with the Beaumont Police Department ("BPD"). By late 1994, the Beaumont Police Department had begun an investigation of Spivey after allegations surfaced that he had obtained a copy of the entry level exam from former Beaumont police officer, Lieutenant Michael Siebe,¹ prior to actually taking the May 1991 examination. At the conclusion of the department's investigation of the charges against Spivey, Chief of Police Thomas Scofield terminated Spivey's employment on January 9, 1995.

Under the Texas Municipal Civil Service statute,² found in Chapter 143 of the Texas Local Government Code, applicants for the position of "police officer" take a "competitive" entry level examination. TEX. LOC. GOV'T CODE ANN. 143.025(a). Based on the results of these examinations, eligibility lists are created for the beginning positions, and from the lists, appointments are made. TEX. LOC. GOV'T CODE ANN. 143.025(b). In Spivey's case, the police department concluded he had obtained and studied a copy of the actual examination prior to actually taking the test. For that reason, Spivey's employment was terminated.

Under Chapter 143 and the collective bargaining agreement between the City of Beaumont and the Beaumont Police Officers Association, a police officer has certain due process rights that are triggered whenever the officer is subjected to disciplinary action such as suspension or, in this case, dismissal. See TEX. LOC. GOV'T CODE ANN. 143.052. Upon receipt of the termination letter from Chief Scofield, however, Spivey was not accorded those rights. Under Chapter 143, Spivey was not advised of the actual civil service rules he had violated,³ he was not informed of his right to appeal to a third party hearing examiner,⁴ and the civil service commission was not informed of his termination within 120 hours of January 9, 1995.⁵ Furthermore, Spivey was denied any rights under the grievance procedure of the collective bargaining agreement.

With all administrative remedies denied him, Spivey then filed in district court a "motion for writ of mandamus"⁶ in which he sought reinstatement to his position, along with back pay. He claimed his termination was invalid, because of the deprivation of his rights under Texas civil service law and the collective bargaining agreement. In contrast to Spivey's assertions, the City, in effect, interposed an affirmative defense, or an avoidance, to Mark Spivey's claim for reinstatement. According to the City, reinstatement was not required, because Spivey's misconduct regarding the exam made his employment void ab initio because he cheated on the examination. Such conduct rendered his appointment as an officer a nullity, and, consequently, he had no rights under Chapter 143 or the bargaining agreement.

A district court may issue a writ of mandamus in order to compel a public official to perform a ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). "An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion." Id. The ministerial act in question is the reinstatement of Mark Spivey to the position of police officer. According to the statute, prompt reinstatement was required if Spivey was not accorded the rights specified in 143.052(e). TEX. LOC. GOV'T CODE ANN. 143.052(f) (Vernon 1999).

As in City of Seven Points, the mandamus action in this case is governed by the following standard:

An action for a writ of mandamus initiated in the trial court is a civil action subject to appeal as any other civil suit. Anderson v. City of Seven Points, 806 S.W.2d 791, 792 n. 1 (Tex. 1991). Therefore, we do not review the trial court's findings of fact and conclusions of law under the abuse of discretion standard applicable to mandamus actions originating in appellate courts. Id. at 794 n.2. We review them in accordance with the standards generally applicable to trial court findings and conclusions. That is, we review findings of fact for legal and factual evidentiary support, id. at 794, and we review conclusions of law de novo, City of Austin v. Austin Prof'l Fire Fighters Ass'n, 935 S.W.2d 179, 181 (Tex.App.--Austin 1996), judgment vacated pursuant to settlement, No. 97-0077(Tex. 1997).

University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no writ). Thus, the trial court's findings of fact and conclusions of law in an action for mandamus in district court are reviewable by the same standards as in other civil suits.

In addition to the issues raised by the City on appeal, Spivey, by way of cross point, has raised an insufficient evidence claim, challenging two of the trial court's findings of fact. Of necessity, we review the cross point in conjunction with the City's claim that Spivey's employment is void. If our review of the record reveals the evidence is insufficient to show that Spivey possessed the actual test before taking it in May 1991 and cheated on the examination, then the act of reinstatement is simply a ministerial one, and the trial court was correct in granting the motion for mandamus. On the other hand, if our evidentiary review reveals the evidence in support of the findings is not so weak as to be manifestly unjust, then the trial court's judgment is in error.

The City raises seven issues on appeal. In issue one, the City urges that Spivey's appointment was void ab initio and, consequently, he was not entitled to any rights under Chapter 143 or the collective bargaining agreement. In issue two, the City claims the trial court's conclusions of law, which hold Spivey did not violate Chapter 143, were erroneous. In both issues, the City's claims are based on the statutory interpretation of various sections of Chapter 143, which, in pertinent part, are set out below:

143.003. Definitions

. . .

(5) "Police officer" means a member of a police department or other peace officer who was appointed in substantial compliance with this chapter. . . .

TEX. LOC. GOV'T CODE ANN. 143.003(5) (Vernon 1999) (emphasis added).

143.021. Classification; Examination Requirements

. . .

(c) . . .[A]n existing position or classification or a position or classification created in the future either by name or by increase in salary may be filled only from an eligibility list that results from an examination held in accordance with this chapter.

TEX. LOC. GOV'T CODE ANN. 143.021 (Vernon 1999).

143.025. Entrance Examinations

(a) The commission shall provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the fire and police departments. The examinations are open to each person who makes a proper application and meets the requirements prescribed by this chapter.

(b) An eligibility list for a beginning position in the fire or police department may be created only as a result of a competitive examination held in the presence of each applicant for the position. The examination must be based on the person's knowledge of and qualifications for fire fighting and work in the fire department or for police work and work in the police department and must inquire into the applicant's general education and mental ability. A person may not be appointed to the fire or police department except as a result of the examination.

TEX. LOC. GOV'T CODE ANN. 143.025(a),(b) (Vernon 1999) (emphasis added).

143.026. Procedure for Filling Beginning Positions

(a) When a vacancy occurs in a beginning position in a fire or police department, the department head shall request in writing from the commission the names of suitable persons from the eligibility list. The director shall certify to the municipality's chief executive the names of the three persons having the highest grades on the eligibility list.

(b) From the three names certified, the chief executive shall appoint the person having the highest grade unless there is a valid reason why the person having the second or third highest grade should be appointed.

TEX. LOC. GOV'T CODE ANN. 143.026 (Vernon 1999).

143.027. Probationary Period

. . .

(d) A fire fighter or police officer who was appointed in substantial compliance with this chapter and who serves the entire probationary period [one year from date of employment] automatically becomes a full-fledged civil service employee and has full civil service protection.

TEX. LOC. GOV'T CODE ANN. 143.027(d) (Vernon 1999).

We are mindful that "[a] fundamental principle of civil service is that appointments must be made according to merit and fitness, ascertained by competitive examinations." Klinger v. City of San Angelo, 902 S.W.2d 669, 671 (Tex. App.--Austin 1995, writ denied). The stated purpose of Chapter 143 is "to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent tenure as public...